Waitangi Tribunal, in the midst of a 'golden age', tackles racism in the justice system
Monday, 12 September 2022
There are days, Timoti Te Moke admits, when he wakes up and thinks: “This is too hard.”
It’s only natural. He’s studying to become a doctor while at the same time struggling with a problem no one has yet figured out.
“The study is hard, and there’s been times I haven’t had two cents to rub together,” says Te Moke.
So, sure, sometimes the thought of walking away from everything drifts through his mind.
“But that would do nothing for my people or my country.”
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And, besides, most of the time he looks back on where he’s come from and thinks: “This is amazing. I have a bit of a whistle and a skip in my step and I’m off to the hospital.”
Te Moke (Ngāti Rangitihi, Tapuika and Ngāti Kurī) is a man on a mission.
A fifth-year medical student at Otago University, currently based in Wellington, Te Moke knows he has come a long way – as a teenager he had many encounters with the law. He turned his life around and was studying to be a paramedic, but in 2012 was charged with manslaughter in circumstances he says demonstrates the prejudice against Māori (he was subsequently found not guilty).
He got on with his life again, but was determined to press for change and so lodged a claim before the Waitangi Tribunal about racial bias by police.
“If I can get up and do something to make a change, to stop us veering off, and head to somewhere positive then I’ve got to do it,” he says.
Te Moke’s claim is now part of the tribunal’s justice kaupapa inquiry (Te Rau o te Tika), alongside others raising concerns about the courts, prisons and other parts of the justice system.
An early part of the inquiry, looking at funding of claimants, continues before a panel presided by Judge Carrie Wainwright this week.
It’s an important process, but it all takes time, which can be frustrating, especially for Te Moke who first filed his claim to the tribunal six years ago.
“Almost 20 young Māori get charged each day, and it’s been six years of 20 young Māori every day since I put in the claim, and then it will be 20 Māori a day until the research is done and the report is done,” says Te Moke.
He looks at that generation of young Māori and he worries what will happen to them; but then he’s also hopeful that, finally, the tribunal can help resolve the issues that have seemed so intractable – where Māori are disproportionately represented in all the wrong statistics, including police searches, convictions, and prison musters.
“We need the tribunal because they’re the actual advocate for Māori in terms of ramifications of colonisation of yesterday and today,” he says. “We bring our stories, we bring our problems, and then it’s up to them to turn to the Government and eloquently put forward our case.”
Te Moke’s lawyers, Roimata Smail and Kellie Dawson, are hopeful that the inquiry can move at a faster pace than might normally be expected, and have made a submission to the tribunal proposing an accelerated timetable.
Some other claimants, though, prefer a more gradual timetable.
Smail favours the quicker process to “avoid any risk of obsolescence while the Crown continues to act”.
Whatever approach the tribunal decides to take, she is optimistic, and believes the tribunal is well set to be dealing with the justice kaupapa now.
“This is a golden age of the Waitangi Tribunal, in my opinion,” says Smail (Ngāti Maniapoto and Waikato-Tainui). She points to the Hauora inquiry report, which set the path for changes in the health system.
“The Hauora report was a watershed report that really brought inequity for Māori to the mainstream and led to the establishment of the Māori Health Authority.
“The tribunal is looking at our most important issues as a society, and it’s showing it can be extremely nimble – it completed the Hauora report in less than two years.”
The inquiry into the Government’s Covid-19 response, too, was dealt with swiftly, heard from top officials and experts, and led to changes in the way the Government engaged with Māori health providers, moves which had a direct outcome on the course of the pandemic.
Dawson (Ngāti Pūkenga) says the way the tribunal hears its evidence, too, puts it in a good position to finally be able to deal with the problems of bias in the justice system, with the panel hearing not only from experts but from claimants like Te Moke and others.
“I don’t think you can get better evidence than from those who have been through the system,” she says. Claimants are made to feel comfortable, and the tribunal is ready to listen.
“Is there anywhere else like that?” says Dawson.
Smail acknowledges that various government agencies have tried to address the issue over the years, but, ultimately, she believes, the tribunal is better placed to come up with answers.
“The tribunal sees Māori as the solution whereas the Crown sees itself as the controller of all solutions and puts Māori in the position of being the problem.”
Associate Professor Linda Te Aho, of Waikato University’s Te Piringa law faculty, agrees that it is timely for the tribunal to hear the justice inquiry, and that the Hauora report demonstrated how it can draw on expertise to come up with useful recommendations.
“The tribunal provides that leverage to the Government to actually put something right,” says Te Aho (Ngāti Koroki Kahukura, Waikato-Tainui).
However, there are limitations to what the tribunal can do, and how effective its inquiries can be.
“The Government is not going to do something unless it wants to.
“I do agree that Hauora is a great example that we can all learn from and maybe build upon. But any change is always dependent upon the political climate. If there is a government that takes a particularly harsh stance on justice, the reality is that the ground may not be fertile in terms of implementing tribunal recommendations.”
Success would come about with a collective effort to produce a well-justified report.
“That’s not just with the claimants, but also the experts in the area doing the work too.”
Another lawyer involved in the inquiry, Annette Sykes, who has led the charge on many claims, says its important that wider questions get looked at to find alternatives, rather than just tinkering with the current system.
“I've been in the game for 40 years and saying to everybody that I am committed to developing a process of justice that's built on tikanga Maori, that's alternative to the pipeline to prisons, and that advocates, as Moana Jackson did, for our own separate justice system,” says Sykes (Ngāti Pikiao and Ngāti Makino).
She wants a system that “builds capacity and capability amongst our people and the resilience amongst our people, te manawanui, to find our own solutions for things”.
“And that's what I'm hoping out of this.”
Sykes is among the group of claimants who have urged the tribunal to take its time. “Claimant counsel do not want to substitute a hurried investigation and the production of a report at the expense of a thorough inquiry into the claims,” says a memorandum they filed with the tribunal on Friday.
Like Sykes, many of the participants in the inquiry have a long history of pleading the case of justice for Māori.
Back in July, when the tribunal panel held its first week of hearings for the inquiry, focused on funding of claimants, Merepeka Raukawa-Tait, a former head of Women’s Refuge, spoke of reports and proposals she’d seen over the past 20 years. “I think a lot of that has not been rectified,” she told the tribunal.
Māori did not feel they were listened to.
“It’s as if we are the ‘B’ team, that we don’t really count, that we’re not to be trusted. It’s just because we do things differently, we want more people involved, we want to have a hui beforehand. Just because we operate in a different manner doesn’t mean we are any less than.”
Now was the time for listening to Māori, she said.
“We should be getting on with the substantive issues that affect justice for Māori in our country, in the land of our tūpuna. It is our right to excel and thrive in Aotearoa.”
At the hearing, Wainwright, a former District Court judge, said the tribunal understood there was a big job at hand and was giving thought to how to carry out the inquiry.
“I don’t want us to be stuffed down the rabbit hole of looking at the detail of what doesn’t work,” said Wainwright.
“I know the detail of it … and we can go down and pick all that apart, but it’s kind of like, this is a big tapestry and that’s picking apart the individual stitches whereas what we’re saying is, ‘This is the wrong picture. It’s the wrong picture.’”
Te Moke gave evidence to the hearing, telling the panel of how he recognised he was a representation of the potential of Māori if they were given the chance.
It’s something he thinks about often, how, despite how “well” he has done, this is not about him – rather he reflects on the opportunities many others have been denied.
“The only reason I’ve got this platform to talk is because I’m becoming a doctor. There are many brothers out there who have stopped going to prison, who are doing their 9-5 job and looking after their whānau, sisters who have come out of prison and got their kids back,” Te Moke later said.
Think of where the country could be if people weren’t being sent to prison in the first place, he says.
His hopes for the inquiry are that it recommends a panel which sits over the justice system as a watchdog, with the power to keep an eye on disparity and prejudice and to recommend changes.
Without it, he fears the system will just keep stumbling along, unable to right its course, no matter that there are people within it who may genuinely want to make changes.
“And that’s where the problem is – the people in the top jobs find it really difficult to make changes, there’s a lot of politics and pressure. Coupled with the systemic problems at the grassroots, it makes it impossible.”
Having an oversight body would remove the pressure, allowing individuals to avoid “being the deer in the headlights”.
At the end of his evidence to the tribunal in July, Te Moke was addressed by panel member, Dr Hana O’Regan (Kāi Tahu).
“I’m really hoping you might choose Christchurch to become a doctor,” she told him. “I would love for any of our tamariki and whānau to have you there as support and advocate.”
Te Moke appreciates the sentiment – but what he’d really like is for systemic change so there could be many, many Māori like him, a plethora of doctors, lawyers, leaders, and others making a difference big and small.
“The potential for our people, and for the country, is huge.”